Update on DAPA and DACA Expansion Litigation

In the Supreme Court’s June 23, 2016, decision titled United States v. Texas, 579 U.S. __ (2016) it affirmed the judgment of the Fifth Circuit in upholding a preliminary injunction against the Deferred Action for Parents and Lawful Permanent Residents (DAPA) Program and the expansion of the Deferred Action for Childhood Arrivals (DACA) Program [see my blog post on the decision].

On July 18, 2016, the Obama administration filed a petition for rehearing the United States v. Texas [PDF version]. Specifically, the administration “respectfully petitions for rehearing of this case before a full nine-member court.” In so doing, the administration is asking for the Supreme Court to rehear the case rather than waiting for the United States District Court for the Southern District of Texas to decide the case on the merits.

The Petition for Rehearing before a Full Nine-Member Court

In its petition, the administration acknowledges that “[o]rdinarily, it is exceedingly rare for this Court to grant rehearing.” However, to support its argument that the Court should consider granting rehearing in the United States v. Texas, the petition cites several instances in the Court’s history where it granted rehearing for cases that ended in a 4-4 tie (mostly from the 1890s, 1930s, and 1940s).

In a separate point, the administration recognizes that the Supreme Court denied petitions for rehearing in two previous cases from this term that ended in 4-4 ties.1 To distinguish United States v. Texas from the two cases that the Supreme Court denied petitions for rehearing on earlier this term, the administration argued that while those cases presented issues that “may freely recur in other cases,” United States v. Texas is “the only pending case that challenges the Guidance.” It noted that while it was a challenge to a preliminary injunction, the preliminary injunction prevents the Department of Homeland Security (DHS) from implementing DAPA or the DACA expansion nationwide. The petition also asserts that there is “no reason to expect that the district court would issue a permanent injunction that is narrower” than the preliminary injunction.

Finally, the administration appealed to the “great national importance” of the issues at stake in United States v. Texas. It argued that if the Court does not decide the issue in a “precedential manner,” the important issue will have been resolved for the Country as a whole by the Supreme Court affirming what the administration categorizes as an “unprecedented and momentous” injunction issued by a district court by a 4-4 split that creates no precedent going forward. The administration recognized that the issue could naturally come before the Court again after the District Court issues its final decision, but arguing that it was unlikely that the District Court would reach a different decision (noting that it had already found that Texas had standing and that it was likely to prevail on the merits of its arguments), the petition argues that the Court should grant rehearing when it has a “full complement of Members, rather than allow a nonprecedential affirmance by an equally divided Court to leave in place a nationwide injunction of such significance.”

Prospects for the Petition Going Forward

The Supreme Court may:

1. Grant the petition;
2. Deny the petition;
3. Ask Texas to weigh in on the issue.2

Five Justices would have to agree to grant the petition in order for the Court to rehear the case.3 However, it is important to note that the petition asks the Court to rehear the case when it has nine Justices. With no hearings scheduled for President Obama’s nominee, Judge Merrick Garland of the D.C. Circuit, it seems unlikely that the Supreme Court will have a full component of nine Justices for at least the next few months. Accordingly, it seems unlikely that the Supreme Court will have cause to grant rehearing of United States v. Texas, and far more likely that the District Court will eventually be able to reach a final decision. Furthermore, even if the court has nine Justices in time to seriously consider the petition for rehearing, it is not at all clear that the petition would be granted based upon the Supreme Court having denied petitions for rehearing in two previous cases in the last term where it deadlocked at 4-4. However, it is quite possible that even if the Supreme Court does not grant rehearing, the legality of DAPA and the DACA expansion may come before it again in the future [see blog].

  1. See Friederichs v. California Teachers Ass’n, 136 S.Ct. 1083; Hawkings v. Community Bank of Raymore, 136 S.Ct 1072
  2. Howe, Amy, “Obama administration asks Court to rehear immigration case,” scotusblog, (Jul. 18, 2016), available at http://www.scotusblog.com/2016/07/obama-administration-asks-court-to-rehear-immigration-case/
  3. Id.